On March 26 and 27, the Court will hear oral argument in the same-sex marriage cases, Hollingsworth v. Perry (the challenge to California’s Proposition 8) and United States v. Windsor (the challenge to Section 3 of the federal Defense of Marriage Act). The first briefs in the cases will be filed on January 22. In advance of those filings, the blog is publishing a series of posts by Marty Lederman of the Georgetown University Law Center on the Article III questions the Court has asked the parties to address in the two cases. This is the fifth post in that series — and the first one dedicated to the Perry case.

In my last post I explained that the Court likely will not have to decide whether the Bipartisan Legal Advisory Group of the House of Representatives has standing to appear as a party respondent in United States v. Windsor. By contrast, the Court has little choice but to decide whether the Proposition 8 proponents have Article III standing to appeal in Hollingsworth v. Perry. The proponents are, after all, the only petitioners in that case, and in order to ensure the case remains fit for federal-court adjudication, “the parties must have the necessary stake not only at the outset of litigation, but throughout its course,” Camreta v. Greene, including on appeal, see Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997).

In this post I’ll explain how the question of standing emerged in Perry and describe the argument in favor of standing. In the next post, I’ll canvass some possible arguments against the petitioners’ standing to appeal.

[UPDATE: As Lyle has noted, on January 11th, Justice Kennedy denied the petitioners’ motion for leave to file a brief in excess of the word limits. Because the parties will undoubtedly opt to devote the vast majority of their briefs to the merits of the equal protection question, they are unlikely to spend many pages arguing about standing . . . and therefore it is very possible that the Article III arguments will receive much more extensive treatment in amicus filings.] [FURTHER UPDATE (01/22): The Proposition 8 proponents devote only four pages of their opening brief to the standing question, focused on the argument sketched out below.]

How the question arises

How did we get to the point where the Proposition 8 proponents and the plaintiffs — but not any California officials — are the only parties in the Supreme Court?

Before November 4, 2008, the California Constitution, as construed by the California Supreme Court, guaranteed the right to marry to opposite-sex couples and same-sex couples alike. Five California residents who opposed this legal rule — Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Hak–Shing William Tam, and Mark A. Jansson — collected voter signatures and filed petitions with the state government to place an initiative on the November 4, 2008, ballot to amend the state constitution. Their proposed measure, Proposition 8, was to add a constitutional provision stating that “[o]nly marriage between a man and a woman is valid or recognized in California.” As the official “proponents” of the initiative, these five individuals were responsible under California law for a number of pre-initiative steps, such as paying the initiative filing fee, preparing petition forms to collect signatures to qualify the initiative for the ballot, filing the petitions for signature verification, and designating arguments in favor of the initiative for the voter information guide. The proponents also established a committee, “ProtectMarriage.com — Yes on 8, a Project of California Renewal,” to support Proposition 8. ProtectMarriage.com was responsible for all aspects of the campaign to qualify Proposition 8 for the ballot, including the collection of 1.2 million signatures.

The initiative measure passed and is now included in the California Constitution as Article I, § 7.5.

Two same-sex couples — plaintiffs Kristin Perry and Sandra Stier, and Paul Katami and Jeffrey Zarrillo — were then denied marriage licenses by the County Clerks of Alameda County and Los Angeles County, respectively. Those four individuals filed a lawsuit alleging that Proposition 8 violates the Fourteenth Amendment to the United States Constitution and seeking an injunction against its application. They named as defendants the two County Clerks who had denied them licenses, as well as four other state officers — the Governor, the Attorney General, the Director of the Department of Public Health & State Registrar of Vital Statistics, and the Deputy Director of Health Information & Strategic Planning for the Department of Public Health.

The California Attorney General, Jerry Brown (now the Governor), answered the complaint by admitting that Proposition 8 violates the Fourteenth Amendment. The other named defendants, including then-Governor Arnold Schwarzenegger, did not admit the allegations, but also joined Attorney General Brown in refusing to defend the new law. Despite this nondefense, the defendants continued to enforce the law by denying marriage licenses to same-sex couples, including the plaintiffs.

In the meantime, the five proponents of Proposition 8 and ProtectMarriage.com filed a motion to intervene as of right in the Perry proceeding, pursuant to Federal Rule of Civil Procedure 24(a), on the ground that the named defendants would not adequately defend the measure’s constitutionality. No party opposed the motion, and the district court granted the proponents’ motion to intervene, ruling that “as official proponents, they have a significant protect[a]ble interest in defending Prop 8’s constitutionality.” The proponents thereafter controlled the defense of Proposition 8 in the district court.

After trial, the district court concluded that Proposition 8’s discrimination against same-sex couples violated the Fourteenth Amendment, and issued an injunction stating that “[d]efendants in their official capacities, and all persons under the control or supervision of defendants, are permanently enjoined from applying or enforcing Article I, § 7.5 of the California Constitution.”

None of the government defendants appealed from the trial court’s ruling. A California voter actually filed a petition for a writ of mandamus to the California Court of Appeal, seeking to require the Governor and Attorney General to file a notice of appeal. The Attorney General responded that “[a]ttorneys general are not potted plants in the litigation process,” and that both state and federal attorneys general “regularly” exercise their discretion not to appeal successful challenges to laws. Indeed, the Attorney General explained, “in view of his public and consistent position [that Proposition 8 is unconstitutional], it would have been inconsistent and legally suspect (if not sanctionable) for the Attorney General to abruptly change course and file a notice of appeal.” The Governor also opposed the mandamus petition. The Court of Appeal denied the petition. Therefore the California Governor and Attorney General were not required to, and did not, appeal from the judgment of the district court that Proposition 8 is unconstitutional.

The Attorney General was correct that this was hardly an unprecedented decision. There have been quite a few Supreme Court cases, for instance, in which state executives have declined to appeal from lower-court judgments finding that state laws were unconstitutional, such as the Karcher, Diamond, and Arizonans for Official English cases I discuss in these posts. Nor would Perry be the first case in which the California Attorney General, in particular, declines to defend a California constitutional provision in the Supreme Court. In Reitman v. Mulkey, the State Attorney General filed an amicus brief urging the Court to declare invalid a California constitutional provision, passed by initiative, that prohibited the state from interfering on antidiscrimination grounds with private parties’ decisions to sell or rent real estate to persons of their choosing. The Attorney General explained that “[s]ince unconstitutional discrimination now finds sanctuary in our State’s Constitution, we are filing this amicus curiae brief.”

Although the actual defendants in Perry, the state officials,declined to appeal (that is, they agreed to abide by the district court’s judgment), four of the intervenor proponents (all except Tam), and ProtectMarriage.com, did take an appeal of the district court’s judgment to the Ninth Circuit. Before that appeal was heard, a motions panel of the Ninth Circuit granted the appellants’ motion for a stay of the judgment pending appeal — a stay that remains in effect to this day. (Therefore the injunction has not yet gone into effect.)

The Ninth Circuit panel realized that before reaching the merits it had to decide whether the appellants had standing to appeal the judgment. Accordingly, it certified to the California Supreme Court this question:

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

The California Supreme Court then issued an opinion answering the certified question. The state court did not address whether the official proponents of an initiative measure possess their own “particularized interest” in the initiative’s validity. Instead, it held that California law affords such proponents the authority to assert the State’s interest in the validity of the initiative, and to appeal a judgment declaring the measure invalid, “at least in those circumstances in which the government officials who ordinarily defend a challenged statute or constitutional amendment have declined to provide such a defense or to appeal a lower court decision striking down the measure.”

With this answer from the state court in hand, the Ninth Circuit panel addressed whether the proponent appellants had Article III standing to appeal from the judgment. Citing Diamond v. Charles,the court began from the premise that “a State has standing to defend the constitutionality of its [laws].” The court recognized that “the decision to assert the state’s own interest in the constitutionality of its laws is most commonly made by the state’s executive branch — the part of state government that is usually charged with enforcing and defending state law.” In such cases, the relevant state official, such as the Attorney General (by this time, Kamala Harris), “obviously need not satisfy the requirements of third-party standing; she stands in the shoes of the State to assert its interests in litigation. For the purposes of the litigation, she speaks to the court as the State, not as a third party.”

In this case, however, where those state officials had chosen not to appeal the judgment, the California Supreme Court had held that state law gives the initiative sponsors the authority to “speak for the state” — “to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” The Ninth Circuit panel deferred to that holding of state law: “It is for the State of California to decide who may assert its interests in litigation, and we respect its decision by holding that Proposition 8’s proponents have standing to bring this appeal on behalf of the State.” The panel reasoned that because “the state has suffered a harm sufficient to confer standing and . . . the party seeking to invoke the jurisdiction of the court is authorized by the state to represent its interest in remedying that harm,” the proponents had Article III standing, even without a showing that they had suffered any individualized harm of their own as a result of the district court’s injunction.

The court of appeals went on to hold that Proposition 8 violated the Equal Protection Clause of the Fourteenth Amendment. The initiative proponents then petitioned for certiorari, and the Court granted their petition, while adding the question about the proponents’ Article III standing to appeal.

The argument for the Proposition 8 proponents’ Article III standing to appeal

The case in support of the Proposition 8 proponents’ Article III standing is quite straightforward, as explained by Judge Reinhardt in the Ninth Circuit panel opinion. It goes something like this:

1. It is true that private individuals ordinarily do not have Article III standing to seek “vindication of the rule of law—the ‘undifferentiated public interest’ in faithful execution of [the law].” Steel Co. v. Citizens for a Better Environment. And this is likely true for initiative sponsors, too. As the Court noted in the Arizonans for Official Englishcase, it has never “identified initiative proponents as Article-III-qualified defenders of the measures they advocated” (citing Don’t Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U.S. 1077 (1983), in which the Court summarily dismissed, for lack of standing, an appeal by an initiative proponent from a decision holding the initiative unconstitutional). Therefore there would be “grave doubts” about the Proposition 8 proponents’ standing, at least in the absence of any state law “appointing initiative sponsors as agents of the people of [the State] to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” Arizonans, 520 U.S. at 65-66.

2. But the petitioners’ standing here, the argument would go, is not predicated on their own injury, or on the “harm to [their] and every citizen’s interest in proper application of the Constitution and laws,” Lujan v. Defenders of Wildlife. Instead, it is based upon injury to the State of California.

It is well-established that a state has standing to defend the validity of its laws. State law ordinarily assigns to executive officers of the state — in particular, to the state attorney general — the responsibility to decide whether and how to defend that state interest in litigation. And in cases where the state attorney general decides to appeal a ruling that a state law is unconstitutional, the Court does not insist that the attorney general must have independently suffered a “particularized,” individual injury of her own: It is enough that she is an agent of the state, and that the state has standing.

Moreover, the Supreme Court has held in Karcher v. May — or so the Perry petitioners are likely to argue — that state law can authorize someone other than state executive officials to “represent the State’s interest in court.” And in such a case, that assigned representative does not need to demonstrate Article III standing of his own — the state’s own standing suffices, just as it does in the ordinary case where it is the attorney general who appeals on behalf of the state.

This part of the argument might be also be supported by cases in which the Court has recognized the legitimacy of private parties representing the United States, or suing to secure a claim of the United States, in Article III proceedings, such as Young v. United States ex rel. Vuitton et Fils S.A,, in which the Court held that a federal judge could appoint private attorneys to prosecute a criminal contempt action where such parties “represent the United States,” and Vermont Agency of Natural Resources v. United States ex rel. Stevens, in which the Court held that “the United States’ injury in fact suffices to confer standing on respondent Stevens,” a qui tam relator, even though Stevens was not acting as an agent of the United States, because federal law can be construed to effect a partial assignment of the Government’s damages claim to the relator. In the latter case, the Court also suggested that if a plaintiff were acting as an agent of the United States, that, too, might be a sufficient basis for Article III standing. See 529 U.S. at 771-72.

Petitioners might also rely in part on the way in which the Court recently characterized two older cases in which the plaintiffs appealing to the Court did not obviously suffer personalized injuries themselves, but instead appeared to be making the sort of “undifferentiated generalized” complaints about whether their state governments were complying with the Constitution — the sorts of complaints that the modern Court refuses to recognize as a “case or controversy.” In Lance v. Coffman, a per curiam summary decision in 2007, the Court held that four Colorado residents who had sued to overturn a decision by the Colorado Supreme Court invalidating a redistricting plan passed by the state legislature lacked standing because “[t]he only injury plaintiffs allege is that the law — specifically the Elections Clause — has not been followed. This injury is precisely the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past.” The Court realized, however, that it had previously entertained at least two appeals that appeared to raise virtually identical types of complaints — in Smiley v. Holm and Ohio ex rel. Davis v. Hildebrant. The Court explained that those earlier two cases “do not contradict this [‘no standing’] holding” in Lance because each “was filed by a relator on behalf of the State rather than private citizens acting on their own behalf, as is the case here,” and therefore “[i]n neither case did we address whether a private citizen had alleged a ‘concrete and particularized’ injury sufficient to satisfy the requirements of Article III.” (It’s an interesting question whether this is the best understanding of what happened in Smiley and Hildebrant. In contrast to the characterization in Lance, see Baker v. Carr, 396 U.S. 186, 206 & n.26 (1962) (indicating that the plaintiff in Smiley had sued in his capacity as “citizen, elector and taxpayer,” and suggesting that the Court had “assumed” the plaintiffs in Smiley and similar cases were injured in their capacity as voters, by alleging “facts showing disadvantage to themselves as individuals”).)

3. According to the California Supreme Court, California law does, in fact, assign to initiative proponents the authority to assert the State’s interest in defending the constitutionality of a law passed by initiative, at least where the state officials who would ordinarily assume that responsibility choose not to do so. And since the Supreme Court virtually always defers to a state’s highest court’s interpretation of its own state law, the Court must therefore accept the conclusion that the Proposition 8 proponents in effect accede to the standing of California itself.

[UPDATE: In their opening brief, the Proposition 8 proponents devote only five paragraphs to standing. They do not argue that they have any standing in their personal capacities — that is, they don’t claim that the lower courts’ judgments caused them to suffer any unique injury by virtue of their sponsorship that the other voters or citizens of California have not suffered. Instead, they rely solely on the standing theory the court of appeals adopted — namely, that the state of California itself has standing to sue to defend its law, and California law assigns (or delegates) to the proponents of an initiative measure the authority “to appear and assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.” This theory of standing also finds support in Part I of the amicus brief of the Center for Constitutional Jurisprudence, and in the amicus brief of the Pacific Legal Foundation.]

* * * *

In my next post, I’ll speculate about what arguments the plaintiffs might make against the Article III standing of the Proposition 8 proponents, and about what might happen to the judgment below, and to Proposition 8 generally, if the Court agrees with the plaintiffs that the petitioners lack standing.

Merits Case Pages and Archives

On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court's October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court's website.

Major Cases

Trump v. International Refugee Assistance Project(1) Whether respondents’ challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)’s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.